OLEG BOGDANON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the erroneous admission of hearsay was harmless, but the deadly weapon enhancement was improperly applied to reclassify the felony.
The defendant was convicted of aggravated battery. The trial court enhanced the sentence based on the use of a deadly weapon, which was also an elemen…
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FULMER, Judge.
Oleg Bogdanon appeals his conviction and sentence for aggravated battery. We affirm the conviction, but remand for re-sentencing.
Bogdanon first argues that the trial court erred in admitting hearsay statements describing the contents of medical records. Although we agree that the hearsay statements were not admissible, the statements were cumulative of the treating doctor’s direct testimony regarding the victim’s injuries. We, therefore, conclude that the error was harmless in this case.
As to the sentence imposed, Bog-danon argues that the trial court erred in utilizing the deadly weapon enhancement in section 775.087(l)(b), Florida Statutes (1997), because the use of a weapon was an essential element of the offense. The trial court utilized the deadly weapon enhancement to increase the crime from a second to a first degree felony. Section 775.087(l)(b) precludes reclassification if the crime charged requires the use of a weapon as one of its elements. See Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996).
The information charged that the battery was committed with the use of a deadly weapon. The jury was instructed that the State was required to prove that Bogdanon caused great bodily harm “and/ or” used a deadly weapon. Because the evidence supports a finding that Bogdanon used a deadly weapon, we are unable to say that the jury did not utilize that alternative.
The State argues that we should affirm because this issue was not presented below. We rejected this argument in Dozier, citing Senterfitt v. State, 515 So. 2d 411 (Fla. 1st DCA 1987). Accordingly, we reverse and remand for resentencing.
Affirmed in part, reversed in part, and remanded for resentencing.
CAMPBELL, A.C.J., and ALTENBERND, J., Concur.
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Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)…th DCA 2001) (use of "and/or” in entrapment instruction); Bynes v. State, 798 So. 2d 49 (Fla. 4th DCA 2001) (co-defendant to Davis); Williams v. State, 774 So. 2d 841 (Fla. 4th DCA 2000) (use of “or” with codefendant instruction); Bogdanon v. State, 763 So. 2d 376 (Fla. 2d DCA 2000) (use of “and/or” in sentence reclassification); Isom v. State, 619 So. 2d 369 (Fla. 3d DCA 1993) (use of "and/or” in listing a government informant as a possible conspirator held not fundamental error because not used as to a disp…
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Dorsett v. McRAY, 901 So. 2d 225 (Fla. 3d DCA 2005)…005); Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003); Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001); Williams v. State, 774 So. 2d 841 (Fla. 4th DCA 2000); see also Gaskin v. State, 869 So. 2d 646 (Fla. 3d DCA 2004); Bogdanon v. State, 763 So. 2d 376 (Fla. 2d DCA 2000). As we understand it, the state’s only real response is based on an aspect of one of the first cases in this series, Williams, which noted that the error was exacerbated by the fact that (probably because the two defendants who w…
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Errol Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003)…y that the jury found Crawford guilty of aggravated battery by use of a deadly weapon, in which case the weapon was an essential element of the offense, and enhancement was improper. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Bogdanon v. State, 763 So. 2d 376 (Fla. 2d DCA 2000). Accordingly, we reverse and remand for resentencing. Reversed and remanded. CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, Concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)
- Senterfitt v. State, 515 So. 2d 411 (Fla. 1st DCA 1987)